Court File and Parties

OSHAWA COURT FILE NO.: FC-10-1470-01 DATE: 20180904

ONTARIO SUPERIOR COURT OF JUSTICE FAMILY COURT

BETWEEN:

LAURA JOAN KINSELLA Applicant – and – REYNOLD JOSEPH THEOPHILLE Respondent

Counsel: Unrepresented (for the Applicant) A. Schwartz, for the Respondent

HEARD: January 15, 16, 17, 18, May 14, 15, 2018

REASONS FOR DECISION

WOODLEY J.:

Overview

[1] Laura Joan Kinsella (“Laura”) and Reynold Joseph Theophille (“Reynold”) met when they were teenagers, fell in love, and began cohabitating on June 1, 1985. Laura and Joseph shared their lives with one another and raised three children together before separating on September 1, 2009 after 24 years of cohabitation.

[2] This is the story about what happened next.

Background

[3] Laura was born in 1963. She was 46 years old at the date of separation and 55 years old at the date of trial. Reynold was born in 1961. He was 48 years old at the date of separation and 57 years old at the date of trial.

[4] Laura and Reynold’s three children were born in 1991, 1993, and 1994, respectively. The children were 18, 16 and 14 years old at the date of separation and 27, 25 and 23 years old at the date of trial.

[5] Throughout the course of their relationship, Laura and Reynold assumed traditional roles.

[6] Laura attended but did not graduate college. Reynold attended and graduated college. Laura obtained employment as a purchasing agent and Reynold obtained employment as a shoe salesman.

[7] After the birth of their first daughter in 1991, and while Laura was on maternity leave, her employer moved the business to the United States. It was decided between Laura and Reynold that Laura would remain home to care for their child.

[8] At this same time, Reynold changed his career path from shoe sales to plumbing, completed his plumbing schooling, and began working full-time as a plumbing apprentice.

[9] Laura remained at home through the birth of the three children. She provided daycare at their home for other children to supplement their income.

[10] In or about 1994, Laura obtained her real estate license, taking the courses at night and on the week-ends when Reynold was home from work. Laura hoped that real estate would be a means to earn income while remaining at home to care for the three children.

[11] Finances were tight for the family throughout this period. Reynold, for the most part, was the sole or main source of income. Laura contributed what she could and maintained the home and cared for the children.

[12] By 1998 Laura’s ability to earn an income through real estate improved and she won an award from Sutton Group. Laura continued to work on week-ends and at night after Reynold came home. All income earned was contributed to the family finances.

[13] In 1999, Laura won another award. This award was for earning commission over $40,000. In 2000, Laura won an award for earning commission over $80,000. Reynold built Laura an office in the basement of their home for her business. Laura continued to contribute any money earned to the family finances.

[14] Laura continued to work at real estate while the kids were at school or Reynold was able to be home to care for them. The family had a busy life as the children were involved in high level sporting activities which involved attendances at regular practices and tournaments.

[15] Despite Reynold’s full-time employment and Laura’s financial contributions - the parties fell into debt and in 2003 declared bankruptcy. Reynold advised that they were “doing too much for the girls – everyday things got out of control”.

[16] The bankruptcy proceedings erased $100,000 in family debt and was cleared within one year. Laura and Reynold retained their home, contents, vehicles (including Reynold’s work van) and tools but lost the debt.

[17] In 2004, Reynold secured a job with Humber College as a plumber. Reynold’s new position provided full medical, health and pension benefits and provided a secure income for the family. This position at the College was truly the “turn around” financial boost that the family needed to move forward and prosper.

[18] Reynold continued to work diligently at his new career and in 2005 was able to transfer his position to Durham College, which was much closer to his home, Laura and their children. The position at Durham College afforded Reynold the same salary, opportunities for advancement and benefits and was a much closer commute.

[19] Laura continued to work at real estate on week-ends and after school. She continued to contribute any earnings to the family finances. However, although real estate allowed Laura flexibility to pick up and drop her children and to attend their events, the costs and fees involved did not leave much profit at the end of the day.

[20] In 2006, Laura obtained a job as a collection officer at Revenue Canada on a one year contract.

[21] In 2007 Laura qualified for a retraining program and attended Durham Business College (“DBC”) were she learned administrative assistant skills. Laura left DBC after a few months as Reynold had secured her an interview for a receptionist position at Durham College. Reynold encouraged Laura to apply and seek full-time employment at Durham College.

[22] Laura was hired by Durham College in 2007 as a full-time receptionist. The position came with medical, health and pension benefits, was unionized and secure.

[23] For a period of time everything was well with the family. Laura and Reynold both worked at Durham College and contributed their shared earnings to the family finances. The children continued to grow and the family prospered.

[24] In August of 2009, Laura and Reynold’s eldest child left home to attend university in the United States on a sports scholarship. She was 18 years old. The couple’s other two daughters were 14 and 16 years old and were in high school.

[25] On September 1, 2009, Reynold advised that he was separating from Laura. In November of 2009, Reynold moved out of the family home – and into his mother’s home for a short period.

Events that Occurred Following Separation

[26] The family home was sold in December of 2009 and the parties each received $61,512.83. Laura purchased a new home for herself and the children in December of 2009. The children resided solely with Laura and had little, if any, contact with Reynold.

[27] Reynold met his (new) spouse Michelle Theophille Kennedy (“Michelle”) at Durham College where she is also employed. Reynold began cohabitating with Michelle in 2010.

Original Application and Final Consent Order

[28] Laura filed the original application on August 11, 2010 as court file no FC-10-1470-00. By that application Laura sought among other matters, spousal and child support retroactive to date of separation, payment of pro rata s. 7 expenses retroactive, sole custody of the children with access as determined by the children, and costs.

[29] Laura and Reynold obtained a final Order of the Honourable Madam Justice Scott on consent on May 15, 2012. The terms of the order which are relevant to the current application are as follows:

a. Para 2 – Reynold’s agreed upon income was $80,000 per annum. Laura’s income was $38,943 per annum; b. Para 3 – Reynold was to pay child support to Laura for the children …while each child resides with Laura and is enrolled full time in a post-secondary institution. Such support shall continue until each child has completed one post-secondary degree; c. Para 15 – the Application and Answer were dismissed, with prejudice and without costs, save and except, Laura’s claim for spousal support which is withdrawn at this time. Laura …may claim spousal support in the future.

Events that Occurred Following Separation

[30] Following separation, Laura was primarily responsible for the emotional and physical responsibilities of raising the children to young adults. Laura settled the children into a new family home, cared for them through high school, attended their events, assisted them with tasks, prepared them for university, and otherwise generally provided continuous care, comfort and guidance to the children.

[31] Laura continued to be employed as a receptionist at Durham College in a secure, unionized position with medical, health and pension benefits. Laura’s pay band remains at band (B) and her salary has remained consistently at $42,000. Laura also continued to earn some income through real estate sales and has been able to reduce her taxable income through real estate related business expenses. Laura has not re-partnered and remains single.

[32] Reynold continues to have very limited contact with his three children – which he claims was not by his choice.

[33] Reynold married Michelle in 2011 and lived with Michelle and her two children in a home jointly owned by them. Michelle’s daughter has now completed university and at the date of trial was moving home with plans to pursue a Master’s degree. Michelle’s son is currently 15 years old, in high school, and participates in high level competitive sporting activities.

[34] Reynold has continued to excel at his employment at Durham College and his pay band and responsibilities have increased significantly. At the time of trial Reynold was the lead hand in a supervisory position at Durham College earning approximately $92,000 per year (pay band J) with aspirations of transitioning to a teaching position at the college.

[35] Michelle earns approximately $72,000 per year at Durham College (pay band I). Michelle formerly - although not presently - received child support and s. 7 expenses from her previous spouse in the amount of $1,000 per month. No details were provided as to any efforts to require Michelle’s former spouse to re-commence or continue child support and s. 7 payments.

The Current Proceeding

[36] Laura and Reynold’s youngest daughter graduated university in June of 2016. Prior to graduation and on November 30, 2015, Laura wrote to Reynold advising him that she would now be seeking spousal support.

[37] Laura issued the within application on August 12, 2016 seeking:

a. An Order for underpayment of child support in the amount of $8,264.72; b. Spousal support in a sum to be determined by this Court commencing on July 1, 2016; c. An Order setting aside the limitation period for a CPP split and an Order splitting the CPP of the credits obtained by the parties during the relationship; and d. Costs on full recovery basis with interest.

[38] Reynold denies all of Laura’s claims and by his Answer seeks:

a. an Order dismissing the Application with costs on a full indemnity basis plus HST; b. an Order imputing income to the Applicant on account of intentional under-employment; c. an Order repaying the Respondent that sum overpaid by him on account of s. 7 expenses; d. an Order repaying the Respondent that sum overpaid by him on account of child support; e. an Order dismissing the CPP claim; and f. an Order for costs on a full indemnity basis plus HST.

The Positions of the Parties

[39] Laura claims that Reynold has underpaid both child and s. 7 expenses as he did not disclose his actual income until 2015 and payments have not been properly adjusted. As for spousal support, Laura notes that spousal support was specifically reserved by the Judgment of Justice Scott dated May 15, 2012. Laura asserts that she is entitled, is in need, and Reynold has an obligation and an ability to pay. With respect to Reynold’s ability – Laura asserts that in addition to Reynold’s salary he also earns income through “side plumbing jobs” and through rental income from Michelle’s parents who have a dedicated phone line and reside with Reynold and Michelle part-time.

[40] Reynold claims that Laura is not entitled to spousal support as she is intentionally underemployed, has already been compensated by him, and has the ability to be self-sufficient. Reynold notes that Laura does not pursue earnings through real estate, does not seek advancement at Durham College and does not require their adult daughters to pay room and board or to make any contribution for residing at Laura’s home. Additionally, Reynold asserts that he does not have the means to pay support due to his financial obligations to his (new) family. Reynold argues that he overpaid child support and s. 7 expenses based on Laura’s continuous intentional underemployment and is entitled to repayment.

[41] Reynold points to both his own and to Michelle’s accomplishments, and the opportunities afforded to them to advance through their employment at Durham College. Reynold argues that Laura’s failure to pursue the same opportunities at Durham College and/or to pursue earing realty income is reflective of intentional underemployment.

Laura’s Income

[42] Laura provided the following disclosure from her financial documents and Income Tax Returns:

Year	Durham College (T4)	Real Estate Commission	Line 150 Income (ITR)	Reported Loss	Line 260 Income
2012	$42,166.66	$22,401.12	$36,588.00	$27,414.03	$31,194.70
2013	*$42,251.06	$21,436.10	$34,216.00	$29,731.41	$29,236.00
2014	$41,270.62	$4,271.40	$21,584.00	$23,958.02	$16,357.69
2015	$41,657.46	($10,570.45)	$31,087.01	$10,570.46	$25,808.02
2016	$42,419.00	$7,066.58	$9,307.00	$40,178.91	$3,933.00
2017	$42,623.32	$3,104.17	$15,908.91	$29,818.58	$10,508.95
2018	**$42,442.40

*DC T4 $40,608.48 + call center job $1,642.40 **total amount estimated from one pay stub

Reynold’s Income

[43] Reynold provided the following disclosure from his financial documents and Income Tax Returns:

Year	Durham College (T4)	Spouse’s Income	Line 150 Income (ITR)	Line 260 Taxable Income
2012	$81,621.66	Not disclosed	$81,621.66	$70,156.00
2013	$84,906.86	Not disclosed	$84,906.86	$72,667.46
2014	$89,652.27	$60,653.53	$89,652.27	$77,225.77
2015	$87,494.74	$58,463.38	$87,494.74	$72,817.58
2016	$89,155.22	$60,534.63	$89,155.22	$76,672.57
2017	$91,367.07	$71,298.92
2018	**$87,817.60	**$71,016.40	Tbd	Tbd

*2017 ITR not filed with Court **total amount estimated from one pay stub

The Law

Imputation of Income

[44] Both Laura and Reynold seek an order that I impute income to the other in excess of that claimed to have been earned or formerly agreed as reflected by the consent Order of Justice Scott dated May 15, 2012.

[45] Imputation of income is sought with respect to both the retroactive adjustment of child support and s. 7 expenses and with respect to the claim for payment of ongoing spousal support retroactive to July 1, 2016.

[46] Section 19 of the Child Support Guidelines, amongst other grounds, explicitly permits a court to impute income based on intentional underemployment, unreasonable deductions from income, and a failure to provide disclosure while under a legal obligation to disclose.

[47] Imputing income is one method by which the court gives effect to the joint and ongoing obligation of parents to support their children and former spouses. In order to meet this obligation, the parties must earn what they are capable of earning. If they fail to do so, they will be found to be intentionally under-employed. See Drygala v. Pauli, [2002] O.J. No. 3731(Ont. CA).

[48] The test for imputing income for child support purposes applies equally for spousal support purposes. See Rilli v. Rilli, [2006] O.J. No. 4142, (Ont. Fam. Ct.); Perino v. Perino, O.J. No. 4298 (Ont. S.C.).

[49] The onus is on the party seeking to impute income to the other party to establish that the other party is intentionally unemployed or under-employed. The person requesting an imputation of income must establish an evidentiary basis upon which this finding can be made. See Homsi v. Zaya, 2009 ONCA 322, [2009] O.J. No. 1552. (Ont. C.A.).

[50] The court in Drygala v. Pauli, supra, set out a three-part test to determine whether income should be imputed.

[51] The first part of the test is to ask whether the payor is intentionally under-employed or unemployed. There is no need to find a specific intent to evade child or spousal support obligations before income is imputed; the payor is intentionally under-employed if he or she chooses to earn less than what he or she is capable of earning. The court must look at whether the act is voluntary and reasonable.

[52] The second part of the test in Drygala v. Pauli, supra, is: “If the payor is intentionally under-employed, is this by virtue of his/or her reasonable educational needs, the needs of the child of the marriage or reasonable health needs?”

[53] Once under-employment is established, the onus shifts to the payor to prove one of the exceptions of reasonableness. Parents can take jobs with less money as long as the decision is reasonable. A payor cannot be excused from his or her support obligations in furtherance of unrealistic career aspirations. See Hanson v. Hanson; Gobin v. Gobin, 2009 ONCJ 245, [2009] O.J. No. 2191 (OCJ).

[54] The third part of the test in Drygala v. Pauli, supra, is: “If there is no reasonable excuse for the payor’s under-employment, what income should properly be imputed in the circumstances?” The court must have regard to the payor’s capacity to earn income in light of such factors as employment history, age, education, skills, health, available employment opportunities and the standard of living earned during the parties’ relationship. The court looks at the amount of income the party could earn if he or she worked to capacity. See: Lawson v. Lawson.

Spousal Support

[55] The Family Law Act (FLA) section 30 empowers a court to make a spousal support order. In the present case there are two conceptual bases for spousal support entitlement: compensatory and non-compensatory.

[56] The court must first find entitlement, and then determine the quantum using the SSAGs as a guide, but not necessarily as a requisite formula.

Compensatory Support Claim

[57] Laura claims that her unpaid work around the house and with the children allowed Reynold to advance his career. Laura’s claims are that her contribution to the family structure resulted in economic deprivation that worsened following separation. Laura also asserts that her income is insufficient for her to meet her financial needs. Both grounds are disputed by Reynold, who argues against Laura’s entitlement to support. Reynold argues that Laura has not proven any economic hardship arising from the breakdown of the spousal relationship. Reynold claims he contributed equally to the family structure during their relationship and that any economic hardship encountered by Laura is self-imposed. To the extent that any economic hardship was encountered, Reynold argues that he has already compensated Laura through securing her a position at Durham College and dividing the proceeds of their home on separation. Moreover, Reynold argues Laura is capable of earning a higher income, demonstrated by her previous real estate sales and awards. Reynold further argues that no spousal support should be payable as he lacks ability to pay. Reynold submits that his current obligations to his step-children and spouse negate any ability to pay.

[58] Compensatory support is grounded in the “condition” of a spouse; the “means, needs and other circumstances” of the spouse; and “the functions performed by each spouse during cohabitation”. [1] “Condition” can include factors like age, health, needs obligations, dependents and station in life. [2] “Means, needs, and other circumstances” can encompass a spouse’s lack of self-sustenance due to foregone career opportunities during the marriage. Sometimes courts have ordered spousal support as a transition towards self-sufficiency. [3]

[59] Common markers of compensatory support include: being home with children full-time or part-time, being a "secondary earner", having primary care of children after separation, and supporting the payor's education or training. [4]

[60] If compensation is not indicated and self-sufficiency is impossible, support may still arise based on need. Economic hardship arising from the termination of the spousal relationship can form a basis for a non-compensatory spousal support order. [5] In some circumstances the law may require that a party continue to support another, absent contractual or compensatory entitlement, in the interest of justice and considerations of fairness. [6]

[61] Common markers of non-compensatory claims include: the length of the relationship, the drop in standard of living for the claimant after separation, and economic hardship experienced by the claimant. [7]

[62] The SSAG provides considerable guidance on location within the range, setting out a non-exclusive list of factors to help determine location within ranges for amount and duration: strength of any compensatory claim; [8]

• recipient's needs; [9]
• age, number, needs and standard of living of children (if any);
• needs and ability to pay of payor; [10]
• work incentives for payor; [11]
• property division and debts; [12] and
• self-sufficiency incentives. [13]

Duration and time limitations

[63] The court has discretion to impose time limitations on support payments. [14] Where time limits are set, they tend to be generous, as they should be in light of strongly compensatory claims. [15] In the absence of any evidence that the payee is deliberately or arbitrarily thwarting their economic self-sufficiency, there is no reason in law or policy to impose a time limit on the duration of support. [16] Limits should be rarely awarded in long relationships. [17] Indefinite is the norm, without unusual circumstances; factors militating against limitations include the following:

1. long marriage;
2. a spouse’s devotion to childcare/household management, if it limits their capacity to work outside the home during marriage;
3. advanced age of the parties;
4. a spouse’s health compromises their ability to obtain gainful employment; and
5. limited employment opportunities. [18]

[64] “Indefinite” support does not mean permanent, but rather that support is subject to the normal process of variation and review. [19] However, if a trial judge awards a limited term of spousal support without justification, the Court of Appeal will overturn it and award indefinite support. [20] The court has discretion to award both post-application support and retroactive support. [21] Support obligations can commence from the date of separation. [22]

[65] Post-application support entitlement is presumptive. [23] Conversely, retroactive support should only be made where a juridical reason exists and the claimant can establish why support was not sought earlier. [24]

[66] Examples of successful reasons to order retroactive spousal support include when

• the plaintiff had limited funds to bring a motion
• the plaintiff was intimidated by the defendant
• the plaintiff showed that the defendant’s income was higher than previously claimed
• the plaintiff was required to encroach on capital
• the defendant deliberately delayed the action, knowing the plaintiff was in need. [25]

Review of the Evidence

Laura’s Evidence

[67] I found the Applicant Laura to be an honest and credible witness. She provided her testimony in a straight forward manner and did not seek to embellish her testimony.

[68] Laura was clearly blind-sided by the separation but spoke respectfully of Reynold and without malice. Laura fairly credited Reynold for being a good father and for assisting with household chores, child rearing and for paying child support and s. 7 expenses (but not for disclosing his ongoing income). Laura did not seek to diminish Reynold’s contributions to the children’s upbringing pre-separation or the payments made for child support and s. 7 post-separation. However, Laura sought an adjustment based on the actual income earned by Reynold from 2012 forward.

[69] As for Laura’s evidence regarding her alleged intentional underemployment - Laura never denied that opportunities for advancement were available through her employment at Durham College. Laura agreed and accepted as fact that advancement opportunities were available through her employment. However Laura’s evidence was that (i) she was busy raising her three children alone and coping with the effect of the separation on herself and the children during the earlier years; (ii) her employment at Durham College is full-time and comes with benefits that she needs for herself and her family; (iii) her real estate license provides a benefit in that it allows her to reduce her taxable income but is expensive and not consistent – and to raise a family and to support herself she requires consistency and benefits; and (iv) she is already working at the peak of her performance level – she could not graduate college at 21 and cannot today.

[70] Laura’s evidence is that she has been consistently and steadily employed on a full-time basis and has utilized all of her skill sets to maintain her full-time employment. I accept Laura’s evidence in this regard. I find that Laura’s evidence was both sincere and believable.

Reynold’s Evidence

[71] Reynold also appeared at trial as an honest and credible witness. He provided his testimony in a straight forward manner and did not seek to embellish any aspect of his testimony relating to any pre-separation issues.

[72] However, I find that the credibility and reliability of Reynold’s evidence to be somewhat lessened relating to post-separation issues. In particular I have difficulty accepting the following evidence:

a. At the end of each month Reynold and Michelle’s combined incomes leave them with little to no money; and b. Despite this fact, Michelle’s parents do not contribute any funds to the running of the household aside from paying their phone bill.

[73] I accept Reynold’s evidence that he stopped doing any “side jobs” following separation from Laura as he prefers to spend his non-working hours with his wife Michelle and her children. I also accept that Reynold and Michelle do not require Michelle’s parents to contribute any money for any period that they stay at Reynold and Michelle’s home.

Retroactive Adjustments to Child Support and s. 7 Expenses

[74] As for both parties’ evidence regarding the overpayment/underpayment of child support and s. 7 expenses – I have reviewed the evidence filed, including the chart submitted by Reynold and the calculations contained therein which imputed income to Laura. I have determined that no income shall be imputed to Laura. As such, having calculated the adjusted payments received and having rejected the income imputed – I find that the parties previously agreed upon and resolved this issue in October of 2016 when Reynold forwarded a letter dated October 11, 2016 and cheque for $3,786.00 to readjust support based on increases in income. Laura’s response was dated October 30, 2016. By her response Laura accepts the payment but notes that child support for 2016 should have gone to June (graduation date) and not April. Laura notes that the balance owing is $204 x 2 or $408. On November 16, 2016, Reynold reiterates his view that the school year ended in April not June and nothing further is due.

[75] There was a massive amount of documents filed regarding this issue which in essence devolves to a de minimis argument over $408 which amount was collected by FRO and has already been paid to Laura. Given the actual amount in dispute I am extremely perplexed and troubled by the volume of the information filed and the attention afforded to this issue.

Non-Party Witnesses

[76] In addition to Reynold - Reynold’s spouse Michelle, Michelle’s mother Karin Pasnik, and a union representative named Ryan Way, testified for Reynold.

Michelle’s Evidence

[77] Michelle presented as a straight forward and honest witness. I accept Michelle’s evidence that despite being paid child support for the support of her two children in the past she does not currently receive child support or s. 7 expenses from her children’s father.

[78] I note that Michelle had a great deal of information about the parties’ financial obligations to one another. It was apparent that Michelle has been intimately involved on Reynold’s behalf in the background for some time and is the person who has calculated and prepared the chart of outstanding child support and s. 7 payments for Reynold.

[79] Despite possessing great knowledge of the financial issues in dispute – Michelle provided limited information about the exact amount of child support and s. 7 expenses received by her from her former spouse that were contributed to household expenses from 2012 to date, when the payments stopped and what efforts, if any, were being made to obtain further payments. Michelle also provided limited information about her income – the information that I did obtain was primarily gleaned from reviewing Reynold’s income tax returns in detail.

[80] As for Michelle’s evidence regarding advancement opportunities at Durham College – I find that Michelle’s specific personal testimony of her journey and advancements at Durham College to be neither relevant nor helpful.

Ryan Way

[81] Ryan Way, who is a union representative at Durham College also gave personal testimony regarding the opportunities afforded, and how he had utilized the opportunities to better his employment and increase his pay band. Ryan also provided more general evidence regarding Durham College’s mission statement, responsibilities, and commitment to further the advancement of its employees. While general information concerning the opportunities available was relevant – I find that Ryan’s testimony as to his own personal journey to be neither relevant nor helpful.

Michelle’s Mother’s Evidence

[82] Michelle’s mother, Karin Pasnik, also testified on Reynold’s behalf. I found Ms. Pasnik to be unusually invested and involved in the proceeding. Ms. Pasnik delayed a trip because of “the trial”. Ms. Pasnik attended at Durham College to serve Laura personally at her place of employment with documents when the documents could have been served by someone else and/or served at Laura’s home. Ms. Pasnik took strong positions on the witness stand and appeared entirely biased. I place no value on Ms. Pasnik’s testimony.

ANALYSIS AND DETERMINATION OF ISSUES

Overpayment/Underpayment of Child Support and s. 7 Expenses

[83] I reject both parties’ submissions that income should be imputed to either Reynold and/or Laura for the purposes of child support and/or for apportionment of s. 7 expenses.

[84] I find that, excepting a dispute over two months of child support, that the parties previously agreed upon and resolved the issue of overpayment/underpayment of child support and s. 7 expenses. In October 2016 Reynold forwarded an explanation of payment and a cheque in the amount of $3,786.00 to readjust support. On October 30, 2016, Laura accepted the cheque and provided her response to the issues – which response devolved to a dispute over two months of child support totaling $408.

[85] As for this sole remaining issue – I find that the term “until each child has completed one post-secondary degree” contained at paragraph 3 of Justice Scott’s May 15, 2012, Order can reasonably interpreted to include the period to the date of graduation – which in this case is June 2016. As such, I find that there has been no overpayment or underpayment of child support or s. 7 expenses.

Spousal Support

[86] I find that Laura sacrificed her own career advancement for the benefit of her family and in favour of Reynold’s advancement. I find that Laura and Reynold shared a spousal relationship for 24 years and that Laura is entitled to spousal support on both a compensatory and non-compensatory basis.

[87] I specifically reject Reynold’s claim that he has no ability to pay Laura spousal support and/or that Laura has no need. Reynold’s obligation to Laura is not displaced by his (later) obligation to his (new) spouse and step-children. This is especially true where the step-children have a biological father who was (but is no longer) paying child support and s. 7 expenses – and no evidence was introduced that would support a finding that the biological father is incapable of providing support. (See Fisher v. Fisher, 2008 ONCA 11, 47 R.F.L. (6 TH ) 235 (Ont. C.A.).

[88] As for any claim of hardship that may be made, Reynold claimed his ability to support Laura was primarily affected by his obligation to support his step-children. Amongst other expenses, Reynold’s evidence was that he employs a lawn care service and spends significant amounts on competitive sporting activities and outings for his step-son.

[89] I do not make any order for spousal support for any period pre-dating the application. Spousal support shall commence the month following the issuance of the application, being September 1, 2016.

Determination of Income for Spousal Support – Imputation of Income

[90] I accept Reynold’s evidence that he did not work “on the side” following separation. I also accept that Reynold does not receive payment from his in-laws for any occupation at his home. I find that Reynold’s failure to seek further work “on the side” and his failure to seek payment and/or rent from his in-laws is reasonable, understandable and an acceptable reflection of the familial relationships shared between Reynold, his family, and his in-laws. I would not impute any amount to Reynold on account of his income for any purpose.

[91] I find that Laura was working to the peak of her ability and was solely responsible for the emotional and physical support of the children. Her explanation as to why she did not seek advancement or seek to pursue real estate sales was reasonable, believable and credible. Laura has a secure full-time job with benefits and security. I find that Laura’s failure to pursue advancement at Durham College and her failure to pursue further real estate sales to be reasonable and understandable in the circumstances of caring and nurturing her children as a single mother. I find that Laura was not and is not intentionally underemployed. I also find Laura’s failure to seek payment and/or rent from her daughters following graduation to be reasonable, understandable and an acceptable reflection of the familial ties and relationship shared between them.

[92] However, having reviewed Laura’s real estate commission income and the expenses deducted by her - I find that it is appropriate pursuant to s. 19(1)(g) of the FCSG to impute income to Laura on account of expenses unreasonably deducted.

[93] Having reviewed Laura’s income tax returns and the expenses claimed by her – the expenses reasonably related to her real estate business are approximately $10,000 per year. I find that generally speaking, any expenses deducted in excess of $10,000 are expenses unreasonably deducted and are subject to imputation for the period September 1, 2016 forward.

Calculation of Spousal Support Payments Due

[94] For the year 2016, Reynold’s income was $89,155.22 and Laura’s income was $42,419. I would impute the sum of $30,178.91 to Laura for expenses unreasonably deducted. Based on the means and needs of the parties, the length of the relationship and the strength of the spousal support claim, I find that spousal support should be payable in the mid-range for 2016. The result is that spousal support is payable by Reynold to Laura in the amount of $86.00 per month for the period September 1, 2016 through to December 31, 2016.

[95] For the year 2017, Reynold’s income was $91,367 and Laura’s income was $42,623. I would impute the sum of $19,818.58 to Laura for expenses unreasonably deducted. Based on the means and needs of the parties, the length of the relationship and the strength of the spousal support claim, I find that spousal support should be payable in the mid-range for 2017. The result is that spousal support is payable by Reynold to Laura in the amount of $722 per month for the period January 1, 2017 to December 31, 2017.

[96] For the year 2018, Reynold’s income is estimated at $87,817 and Laura’s income is estimated at $42,442. I would impute the sum of $19,818.58 as an estimate of expenses unreasonably deducted. Based on the means and needs of the parties, the length of the relationship and the strength of the spousal support claim, I find that spousal support should be payable in the mid-range for 2018. The result is that spousal support is payable by Reynold to Laura in the amount of $607 per month commencing January 1, 2018 to December 31, 2018.

[97] Spousal support shall continue to be paid indefinitely by Reynold to Laura.

[98] For so long as spousal support is to be paid, the payor and recipient, must provide updated income disclosure to the other party each year, within 30 days of the anniversary of this Order.

[99] Unless the support Order is withdrawn from the office of the Director of the Family Responsibility Office, it shall be enforced by the Director and amounts owing under the support order shall be paid to the Director who shall pay them to the person to whom they are owed.

CPP Pension Split

[100] Laura requested that Reynold’s CPP pension credits be split and that the Court set aside the limitation period to allow the CPP split. The provisions of the Canada Pension Plan are clear. I have no jurisdiction to set aside or extend the time period for the CPP split except on consent of the Reynold. There is no consent to this request and the claim by Laura is dismissed.

Life Insurance

[101] Laura requested that life insurance be obtained as security against support. The court has jurisdiction to require a spouse with existing life insurance to designate a beneficiary, but not to obtain or reinstate it. [26]

[102] In the current circumstances Reynold would have life insurance through his employment at Durham College.

[103] Reynold shall, within 60 days of the date herein, designate Laura as the beneficiary of his life insurance policy in an amount sufficient to secure his spousal support obligation calculated at $115,000.

Costs

[104] As the results were mixed and as any cost order may affect the delicate financial balance of the parties and Reynold’s ability to pay the support as ordered, subject to any offers to settle exchanged between the parties that may affects costs, each party shall bear their own costs.

[105] In the event either party has made an offer affecting costs, such party shall file costs submissions limited to four pages in length, with any offer to settle and a bill of costs attached, within 20 days of today’s date.

[106] The response to any request for costs shall be limited to four pages in length, with any offer to settle and a bill of costs attached, served and filed within 35 days of today’s date.

[107] Any reply shall be limited to 2 pages and served within 40 days of today’s date.

Justice S. J. Woodley Date Released: September 4, 2018

[1] Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para. 36. [2] Thompson v. Thompson, 2013 ONSC 5500 at paras. 43 & 47. [3] Bracklow v. Bracklow, [1999] 1 S.C.R. 420 at para. 46. [4] Spousal Support Advisory Guidelines: the Revised User’s Guide April 2016, online: http://www.justice.gc.ca/eng/rp-pr/fl-lf/spousal-epoux/ug_a1-gu_a1/pdf/ug_a1-gu_a1.pdf [Guide]. [5] Bracklow v. Bracklow, [1999] 1 S.C.R. 420, at para. 41; Moge v. Moge, [1992] 3 S.C.R. 813, [1992] S.C.J. No. 107. [6] Bracklow v. Bracklow, [1999] 1 S.C.R. 420, ibid at para. 48. [7] SSAG 2016. [8] See Barry v. Barry, 2009 NLUFC 13 (weaker compensatory, stronger non-compensatory claim, below mid-range). [9] See Bastarache v. Bastarache, 2012 NBQB 75 (disparity in living standards, wife’s need, between mid and high range). [10] See Macey v. Macey, 2013 ONSC 462 (payor's cash flow seriously affected by mandatory pension contributions). [11] See Reid v. Carnduff, 2014 ONSC 605 (mid-range, transportation costs for commute to work). [12] See Cochrane v. Cochrane, 2013 BCSC 2114 (strong compensatory claim, but large property, low end). [13] See Shorey v. Shorey, 2009 ONSC 5136, [2009] O.J. No. 5136, 183 A.C.W.S. (3d) 495 (Ont. S.C.J.). Where difficult to impute income to a recipient, but a court believes she or he could earn more, a judge may go lower in the range. [14] FLA s. 34(1)(a), see also DA, s 15.2. [15] Guide, at Ch. 8(m). [16] Miglin v. Miglin, [2001] O.J. No. 1510, 16 R.F.L. (5th) 185 (Ont. C.A.), varied 2003 SCC 24. [17] Racco v. Racco, 2014 ONCA 330. [18] Krauss v. Krauss, [1991] O.J. No. 777, 33 R.F.L. (3d) 233 (Ont. C.A.); Pope v. Pope, [1999] O.J. No. 242, 43 R.F.L. (4th) 209 (Ont. C.A.). [19] Reisman v. Reisman, 2014 ONCA 109. [20] Cassidy v. McNeil, 2010 ONCA 218. [21] FLA ss. 34(1)(b) & (f). [22] Schmuck v. Reynolds-Schmuck, [1999] O.J. No. 3104, 50 R.F.L. (4th) 429 (Ont. S.C.J.). [23] MacKinnon v. MacKinnon, [2005] O.J. No. 1552, 13 R.F.L. (6 th ) 221 (Ont. C.A.); Levan. [24] Beckett v. Spencer, [2002] O.J. No. 3682 (Ont. S.C.J.). [25] Marinangeli, obiter at para. 66. (This likely refers to Drygala v. Pauli, which is also known as Marinangeli v. Marinangeli). [26] FLA, s. 34(1); Katz v. Katz, 2014 ONCA 799.